INSIGHT: A Time for Plan B? In Search of a Better Way to Staff the Executive Branch

Staffing the government in the United States is a radically different endeavor than it is virtually anywhere else in the world.

There are roughly 4,000 political appointees in the federal government, of which about 1,200 are presidential appointments that require Senate confirmation (PAS positions). By contrast, the number of political appointees in other countries often number less than a hundred (and in some cases less than 10).

Identifying and recruiting the individuals who will be responsible for implementing an administration’s agenda is therefore a much more important aspect of governance in the United States than it is other countries. But developments in recent years have put this process under significant strain.

Broken Process

In many ways the traditional procedure for staffing senior positions in the executive branch—nomination by the president, confirmation by the Senate—has fallen apart. Recent Republican and Democratic administrations have had numerous PAS positions that remained unfilled for years (and in some cases indefinitely), with profound consequences for the ways in which many executive branch departments and agencies have operated.

Because the use of acting officials and other ad hoc appointments has only recently been the subject of study, historic data on the extent to which such appointments were utilized in the past is limited; nonetheless, a recent Brookings Institution project concluded that “there are far more long-term acting secretaries in this administration” than in any other on record.

Put simply, even assuming there was a time when a president would be able to largely put their “team” in place without incident, that is clearly not the case today.

Presidents therefore need to have a plan for how they are going to staff their prospective administration if they cannot use the traditional route, and that plan needs to be one that accounts for the current reality of the Senate confirmation process and for the potential legal and administrative issues that arise when using a staffing plan that relies on alternative arrangements.

This breakdown of the Senate confirmation process is, at some level, unsurprising, for the process was designed by the Founders on the basis of a number of flawed assumptions. The requirement for Senate confirmation comes from the Appointments Clause, which requires all principal officers of the executive branch to be subject to presidential appointment and Senate confirmation.

Hamilton Dismissed Breakdown Prospect in Federalist Papers

In laying out the case for the Appointments Clause in the Federalist Papers, Alexander Hamilton wrote that requiring Senate confirmation for principal officers “would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.”

Hamilton also dismissed concerns about the possibility of a breakdown in the confirmation process, noting that the public would be well aware of “the circumstances attending an appointment,” and therefore the “blame of a bad nomination would fall upon the President singly and absolutely,” while the “censure of rejecting a good one would lie entirely at the door of the Senate.”

The current confirmation process, however, belies Hamilton’s hopes and exposes the defects in our “two-key” system, which assumes a degree of cooperation and accountability that does not exist.

The upshot is that, when the Senate and the White House are controlled by different parties, or when the Senate simply refuses to go along with the president’s “team,” the president’s choices can be blocked without any recourse—there is no tie-breaker in the Constitution.

If the Senate refused to confirm all of the president’s nominees, in theory the government could cease to function; refusals that targeted all nominees for a given department or agency could threaten administration policies.

Alternative Measures

As a practical matter, no president will accept such a quasi-parliamentary outcome, in which the legislature effectively dictates executive personnel decisions. Instead, faced with such obstacles, a president will adopt an alternative model—a “Plan B” for staffing the government.

Inklings of such a Plan B approach to staffing have been evident in both the current and prior administrations. For example, the positioning of “acting” officials in otherwise Senate-confirmed offices, using the broad provisions of the Vacancies Reform Act, has been widespread in the current administration.

Both the Obama and Trump administrations have bypassed the confirmation process on a number of occasions by using political appointees—whether described as “counselors,” “special advisers,” or “czars”—who, while not subject to Senate confirmation, effectively work to implement administration policies in the same manner and virtually to the same extent as if they were confirmed in full compliance with the Appointments Clause.

And administrations of both parties, going back several decades, have sought to centralize decision-making in the Executive Office of the President of the United States, which contains relatively few PAS positions.

Using such a Plan B approach to staffing can create significant administrative and legal issues. For example, while broad in many respects, the Vacancies Reform Act does impose limits on who can be appointed an “acting official” and how long they can serve, and government decisions are null and void if they are made by purported acting officials who are in fact ineligible for such offices.

Similarly, there are many government actions that, as a matter of statute, may only be carried out by a specific PAS position, and a “counselor” or “special adviser”—even if they are functioning as the de facto PAS for that particular office—cannot take such actions. Many of these concerns, however, can be mitigated (at least in part) through careful planning, in which use of the traditional confirmation process is combined with reliance on a range of alternative staffing arrangements.

“Personnel is policy,” a quote usually attributed to Ronald Reagan, makes the simple, but critical, point that the key to an administration achieving its objectives is having the right people in the right positions. But getting the right people in the right positions is not that simple at present, and presidents therefore are likely to need a Plan B for how they will pursue that end.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Robert Rizzi is a partner in Steptoe & Johnson LLP’s Washington, D.C., and New York offices and co-chairs the firm’s tax practice. He represents prospective political appointees requiring Senate confirmation through the vetting process including Cabinet and sub-Cabinet members, administrators and commissioners of various agencies, and numerous ambassadorial appointees in both Democratic and Republican administrations.

Charles Borden is a partner in Holland & Knight’s Washington, D.C., office where he focuses his practice on the intersection of law and political activity. He counsels individuals appointed to senior positions in the Executive Branch of the federal government, including senior White House and State Department officials.